Guidelines for Deportation Review Finally Issued

Immigration authorities are reviewing new and pending deportation cases to find out which cases should be prioritized and which ones should be administratively closed.

As announced on November 17, 2011, the Department of Homeland Security has launched a review of incoming as well as pending removal cases, currently numbering about 300,000.

This implements the June 17 memorandum directing ICE (Immigration and Customs Enforcement) personnel to prioritize the removal of criminals and public safety risks and focus the use of the government’s limited resources.

It is also a timely response to mounting criticism that the policy in the June 17 memo had been implemented unevenly among ICE offices all over the country. A recent report by the American Immigration Lawyers Association and the American Immigration Council showed that many ICE agents and attorneys did not consider the memo binding absent further guidelines.

The November 17 memo and accompanying guidelines outlined a more formal review process and listed criteria to help ICE attorneys determine whether to accelerate the case or to favorably exercise prosecutorial discretion.

Cases involving aliens who committed serious crimes and are national security risks will generally be accelerated. Examples include suspected terrorists, those convicted of a felony and certain misdemeanors, as well as those who committed immigration violations such as fraud and illegal entry.

On the other hand, eight criteria are enumerated so ICE attorneys can more easily know if discretion should be exercised favorably. These include service in the armed forces, presence in the U.S. for at least 5 years coupled with a high school or college education, presence for at least 10 years for those over 65 years old, and having a serious mental or physical condition.

The new guidance only covers clear-cut cases and does not replace or supersede the factors in the June 17 memo. ICE attorneys are still required to consider the broader and more numerous factors in the June 17 memo in determining which cases to close or continue.

The initial stage of the review ends on January 13, 2012. A second stage is reported to begin on December 4, 2011, where pilot projects in selected immigration courts will closely examine the docket and focus on cases involving aliens arrested for deportation.

The review process is expected to relieve clogged immigration court dockets and preserve government resources for the removal of the most egregious of offenders.

Anyone with a pending deportation case who believes that he/she would be affected by the guidelines should seek the advice of a competent immigration attorney.

It must be remembered that the new policy is not an amnesty program. There is no right to a favorable exercise of discretion and, even if favorably exercised, prosecutorial discretion does not give the alien legal status. Any alien who is unlawfully present in the United States may be placed under removal proceedings.

However, the new guidelines make it clear that the full extent of the law should not be imposed with equal force on convicted felons and DREAM Act students, the sick and elderly with many years of residence and strong community ties, and other low priority immigrants. Unless comprehensive immigration reform is legislated by Congress, positive executive action such as this helps address the clamor for a humane immigration policy.